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EMTALA Online -- Health Law Resource Center


Executive Summary:

Vers. 3.0 --SEPT. 2003 Revisions Included

This summary represents a synthesis of statute, regulations, court cases, and administrative enforcement actions to provide an over-view of the current status of the law. Detailed exceptions or special requirements are not included unless they are frequently involved in litigated or administrative actions. The intellectual position of this paper is that avoidance of citation is the primary goal, and comments reflect that position. This paper is intended for educational purposes only and should not be relied upon as a legal opinion.

Legal opinions should be sought from local counsel familiar with CMS activities and EMTALA (formerly known as EMTALA). Although this information is prepared, maintained, and offered as educational material by Stephen A. Frew JD and Frew Consulting Group, Ltd., no direct legal or consulting services are available from Stephen A. Frew JD or Frew Consulting Group, Ltd. after March 1, 2002,




The COBRA law (Consolidated Omnibus Budget Reconciliation Act --COBRA) was passed in 1986, with a four-page portion addressing the problem of "patient dumping" -- denial of care or transfer of patients based on inability to pay for care. Although motivated by the issue of dumping, the statute itself is NOT an anti-dumping statute, but a federally mandated standard of practice for hospitals and physicians. This segment of the law was originally known as COBRA in medical circles and as EMTALA (Emergency Medical Treatment and Active Labor Act) in legal proceedings. Over the years, EMTALA has become the most common name for the statute and rules.

The statute is found at 42 USC 1395dd or Section 1867 of the Social Security Act. It was amended in 1988 and 1989 to add more stringent QROvisions regulating on-call physicians in general and the practice of obstetrics, specifically. Florida passed state legislation which generally paralleled the act, but inserted state-specific standards which remain in effect. Texas passed a prototype of the EMTALA law prior to the federal legislation. California, New Mexico, and a number of other states now have legislation that attempts to address issues in whole or in part covered by EMTALA.

In 1994, the Health Care Financing Administration (now CMS) passed rules and regulations that further defined EMTALA obligations of hospitals, and imposed certain new requirements. Some of these revisions left the Florida statute more restrictive in certain aspects than the federal standard. Other states may also have laws with the same potential effect.

Greater concern, however, is raised by state laws that impose lesser or conflicting standards. These laws, while enforced within the jurisdiction, may violate EMTALA directly -- and are therefore pre-empted by EMTALA -- or may cause confusion which results in accidental violation of EMTALA.

In 1998, CMS issued new site review guidelines (Available online at www.medlaw.com/site.htm)These guidelines are general instructions to the inspectors making the site visit. Although these guidelines were expected to make a number of "liberal" changes to the rules, this did NOT occur.
The most significant language change added a specific instructions to site reviewers that hospitals are NOT to make any verification, courtesy, or pre-authorization calls to payers prior to completion of the medical screening examination and stabilization. Hospitals that make pre-authorization calls are deemed in violation of the law. The 2003 revisions to the regulations make pre-authorization calls potentially possible, but the complications do not appear worth considering them. See discussion below.

In 1999, new regulations on patient rights added language about restraint and seclusion which placed significant restrictions on use of physical and chemical restraint. These revisions placed heavy restrictions on use of these methods for control of patient behavior, required physician face-to-face evaluation, QROhibited PRN orders for restraint (including drugs for management purposes), and set time limits on orders. These revisions had significant impact on standards for ED management of psychiatric patients under EMTALA.

In 2000, CMS issued new regulations for the Out-patient prospective Payment System (OPPS) which included significant EMTALA expansion. Specifically, the OPPS require the hospital to provide emergency response capabilities, beyond merely calling 9-1-1, for accidents, injuries, or patient presentations on the hospital campus, which was defined to include a zone of 250 yards surrounding the main hospital building. In addition, off-site locations were severely restricted in the OPPS participation for payment, but those areas that do receive OPPS compensation are required to provide access, medical screening and appropriate movement of presenting unscheduled patients and patients/visitors/employees with sudden onset of accident or illness unrelated to a scheduled visit (or related, but not foreseen). Off-site locations must also follow the financial rules, signage, and patient care standards that are required of the Emergency Department under EMTALA.

Yet another provision of the OPPS regulations requires OPPS sites and Emergency Departments, and the hospital as a whole to comply with language translation standards for people with limited English QROficiency (LEP). These standards impact the requirements for signs, translation capability, and documentation for compliance with EMTALA.

In September 2003, CMS issued revised regulations that restated many prior interpretations that had not yet reached formal regulatory format, and also clarified and reduced the exposure of off-site areas for EMTALA compliance. Under the new rules, hospital owned locations on and off campus were no longer required to have active EMTALA compliance QROcedures unless they qualified as a "dedicated emergency department." Dedicated ED's are treatment areas that accept walkin or unscheduled visits that account for 33.33% of their visits in the prior year as determined (in retrospect upon investigations being triggered) by CMS random audit-- OR-- if the name implies emergency services, such as "Urgent Care" -- OR -- if hospital advertising or signage or otherwise holds the location out to the public as a place to come for emergency services or something similar. The hospital remains responsible for response capability within 250 yards of the hospital to assist persons in need of care. The new regulations also took the position that they would not apply EMTALA to patients who had been admitted, but would monitor and enforce the Medicare Condition of Participation standards against hospitals if an inpatient violation was detected. An admitted patient is one that is admitted with the expectation that they will remain hospitalized in the facility overnight. Patients who are admitted for stabilization and transfer remain covered by EMTALA, as do those who are admitted for the purpose of avoid EMTALA, such as an admission and immediate discharge or admission to avoid responding on-call. How this change will affect inspections and enforcement will be more clearly articulated when new site review guidelines are published by CMS.


The Centers For Medicare and Medicaid Services (CMS) division of the Department of Health and Human Services is responsible for investigation and partially responsible for enforcement of this statute. The Office of Inspector General (OIG) of the Department of Health and Human Services is responsible for other enforcement aspects of the law. Violations of EMTALA also are reported to the Justice Department for evaluation for Hill-Burton Act violations, to the Office of Civil Rights for evaluation of discrimination implications, to the Internal Revenue Service for evaluation of implications for tax-exempt status, and to JCAHO for accreditation review. All of these agencies are potential enforcers of the law, but only CMS and OIG are actively involved in most instances.

CMS is not sufficiently staffed to promptly deal with each and every reported violation and resulting investigation. Some states have substantial delays of several years in finalizing citations. OIG likewise often takes years following a citation to finalize administrative civil monetary penalties (fines).

Private enforcement of the law is provided by creation of a special civil cause of action against hospitals for violations. This cause of action can be based on the actions of employees, hospital policies and procedures, and upon actions of independent physicians on the medical staff of the hospital. This action may be brought in state or federal court, and is separate and distinct from any medical malpractice cause of action. The Plaintiff need not establish any deviation from the standard of care, but only need prove that they received different treatment than another patient similarly situated or that a EMTALA requirement was violated. State malpractice procedures regarding hospitals are pre-empted by EMTALA, according to the majority rule. There is a split of authority on how state malpractice procedures for physicians apply when the physician is sued for malpractice along with the hospital EMTALA claim.

To date, an estimated 1700 hospitals -- or more than 1-in-3 US acute care hospitals -- have received EMTALA enforcement actions from CMS. The top EMTALA states are Texas, California, Florida, and Georgia. Virtually all states have had significant citation activity. Few hospitals have received actual termination, leading some to suggest that the number of cases reflect a lack of enforcement and lack of effective sanctions by CMS. A hospital actually terminated in 1996 for following managed care procedures, however, has shocked the industry into the realization that failing to take EMTALA seriously truly can be fatal.

In 1997, a hospital was other violations of the Conditions of Participation in Medicare. This hospital did not achieve re-admission to the program for approximately 7 months. During that time, the hospital had to render care in compliance with Medicare rules, BUT NOT GET PAID. Upon re-admission, no back payment is allowed. In this incident it is reported by insiders that the 40-50 bed hospital lost more than $30 million in reserves to keep the hospital open.

Again in 2001, a psychiatric hospital in Oklahoma was terminated from Medicare for EMTALA violations.

Current literature includes articles on the "over-rated" risk of EMTALA sanctions by comparing the number of cited cases to the total volume of ED visits to suggest that it is an insignificant risk. That position, however ignores the harsh reality of the hospitals that are cited -- including small hospitals up to "mega" medical centers like Parkland Hospital in Dallas (cited in 1996). The high ratio of hospitals with citations represents a severe threat that deserves to be taken seriously by any institution.

The cost of a EMTALA citation -- in terms of internal time committed to the plan of correction, outside consultants and lawyers, and the cost of additional equipment or FTE's to support the plan of correction remedies generally reaches $150,000 in small hospitals and exceeded $1.8 million in projected costs for one 400 -500 bed facility for the first year of the plan of correction.

Several hundred EMTALA civil cases have been filed in the US, with verdicts and settlements reported in excess of $3 million in some cases. A number of cases have been decided in favor of the involved hospitals prior to trial. A majority of cases appear to have been settled prior to trial. The legal environment is still developing, and conflicting rulings are frequently seen between the federal court circuits. These conflicts are beginning to be worked out in Courts interpreting the sole Supreme Court ruling on EMTALA, but the process will necessarily require extended litigation over as long as three to five years before the Supreme Court will again be in a position to provide guidance to the conflicting courts.


Possible violations of EMTALA must be reported by receiving hospitals within 72 of the possible violation, pursuant to 1994 regulations. These regulations were not enforced, due to Paperwork Reduction Act technicalities, until September 1995. They are now in effect and carry significant sanctions for non-reporting. This source presents a majority of cases reaching CMS attention at this time. Other sources include: physician complaints, patient complaints, EMS system complaints, routine site visits, newspaper articles, and 1-2 screens. Any possible violation that comes to state attention must be reported to CMS by the state. Florida requires any health care professional with knowledge of a violation to report it to the state within 30 days -- including self-reporting. Federal law does not require self-reporting.

Upon review and determination that a credible allegation of violation exists, the regional office of CMS, issues a direction to the state hospital licensing officials to conduct an unannounced focus survey to determine the facts associated with the possible violation. The state is not to disclose the nature of the originating case (index case) nor the nature of their findings during the investigation. The state is to forward all information to the regional CMS office for evaluation and determination of whether a violation has occurred.

If a violation is deemed to have occurred, CMS issues a notice to the hospital that its Medicare participation will terminate in 23 days, unless a suitable plan of correction is submitted. These plans must show credible evidence of current compliance -- i.e. planned steps for future correction are not acceptable. On day 19 of the process, a notice of termination is published in local newspapers, unless a suitable plan has been submitted and re-survey has validated compliance prior to day 19.

If a suitable plan of correction is submitted and validated by re-survey within the 23 day period, the termination is converted to a 90 day termination track, which provides for a subsequent re-survey to validate on-going compliance. A hospital may be removed from the termination process, but left on state observation for a period of time to further validate the effectiveness of the plan of correction. Upon clearance all termination or observation conditions, "Deemed" status is restored.

Physicians found in violation of EMTALA for multiple or flagrant violations may be terminated from Medicare participation.

Hospitals that fail to report violations by other hospitals may be terminated from Medicare participation. The first citation against a hospital for failure to report occurred in 1996. While it is still not a high-volume citation issue, failure to report remains a concern that should be appropriately addressed by policies in each facility.

Considerable variation exists in the standards applied to specific situations in various regions of CMS, and among various states within a region. This is primarily a factor of confusion or internal policy differences among system participants.

In the event that CMS determines the Conditions of Participation (COP's) have been violated at a serious level, the hospital may also face termination from Medicare. This process, however, typically allows hospitals a longer period to remedy violations and is usually less confrontational and Draconian than an EMTALA citation. Please be aware, however, that it is not a pleasant process and is very demanding -- it is potentially fatal to the hospital just like EMTALA citations -- and the only "good" thing about it is the greater time to address issues (but they still have to be addressed). In a CoP investigation, every minute detail of hospital operation is under scrutiny, rather than just those related to EMTALA, and it is not to be under-estimated for ignored.


The OIG operates separate from CMS, but receives the CMS findings and evaluations from the Draconian, and determines whether it can QROve a violation occurred. If so, it issues a notice of civil monetary penalty (CMP)-- i.e. fine. The CMP may be up to $50,000 per violation (not per patient) for hospitals of 100 beds or more; $25,000 per violation for hospitals of 99 beds or less; and $50,000 per violation per physician. CMP's are not covered by malpractice insurance. The largest fine to date for a hospital is $350,000.

The largest fine to date for a physician is $100,000 for a surgeon who transferred two patients without performing surgery to stabilize the patients, failing to obtain advance acceptance of the patients and failing to comply with documentation standards of compliance. While that case was subsequently reversed for an administrative issue and a court position unique to that circuit (6th Circuit), it does represent an indicator of CMS policy on physician fines -- they intend to issue them and hold physicians responsible for transfer decisions that do not comply with the agency's standards for EMTALA compliance.

Quality Improvement Organization ACTIVITY:

The organization functions as a non-binding advisor to the OIG on whether EMTALA violations can be proven. The QIO reviews do NOT affect the CMS termination procedures unless CMS specifically defers action pending QIO review. Generally, CMS actions are completed and findings submitted before QIO review commences. QIO reviews tend to be more influenced by standard medical practice than the requirements of EMTALA, and often find no violations in cases that CMS and the courts have determined violations exist. Considerable tension exists between state QRO's and CMS offices over EMTALA enforcement standards. This discrepancy can be helpful to hospitals faced with OIG fine actions, to lower their over-all exposure to fines.

The new regulations seem to signal an increased expectation that the CMS actions will be based on at least a 5-day emergency review by the QIO.


State enforcement agencies have varying degrees of familiarity with EMTALA and tend to be heavily influenced initially by their own experience in the way hospitals operate in their own environment. As state agencies get more experience dealing with CMS expectations, the strictness of EMTALA enforcement standards increases. State agencies are severely stressed by the short time frame (5 days) provided by regulations for completion of EMTALA investigations, and some states have been forced to completely cease state-based inspections in order to comply with demands for various types of federal inspections, including EMTALA.


No pre-termination appeals rights exist under EMTALA. A hospital is faced with the choice of submitting a plan of correction in the time provided or going to termination, and then appealing. During the appeals QROcess, no Medicare benefits are paid to the hospital. No right exists to obtain an injunction to block the termination pending appeal. The appeal QROcess includes a hearing before an administrative law judge, and from there an appeal to the national appeals board, and from there a direct appeal to the US Circuit Court of Appeals for the jurisdiction in which the hospital is located. The appeals QROcess takes up to three years, and it is generally conceded that bankruptcy will close a hospital long before its appeals QROcess is completed. No determination has been made whether a Chapter 11 bankruptcy filing by a hospital would stay the termination of benefits, but neither does any facility want to be the test case to evaluate this route of EMTALA defense. Negative publicity associated with the termination is considered to be potentially fatal in-and-of-itself.


Hospitals which receive Medicare benefits are required to:

1. Provide a medical screening examination to all patients that present upon its premises. This provision, as interpreted and applied, requires hospitals to accept and evaluate any patient on its premises who presents for a non-scheduled visit and seeks care, regardless of ability to pay. The scope of the medical screening exam will be discussed later, but is extensive and triage does not meet the screening requirement. Hospital premises includes hospital-owned and operated ambulances and off-campus locations billing under the same Medicare provider number and areas, facilities or services contained in the hospital's operating certificate --i.e. hospital-owned clinics or physician practices owned by the hospital. Those units that are under the legal definition of a dedicated emergency room are fully bound by EMTALA, while those that are not are required to have policies and procedures on how the unit is to respond to a patient presenting with what a prudent lay person would consider to be a condition requiring immediate assessment and care.

The 2003 exceptions for MSE patients presenting on hospital property are:

  • Admitted patients
  • Patients who experience problems after commencement of scheduled out-patient procedures
  • Patients who are on premises for purposes other than an ED visit, such as BP screening at a health fair (unless they experience a medical crisis on premises)
  • Scheduled out-patient and return visits (still requires logging and some medical documentation) and
  • Ambulances with patients on the hospital property for the sole purpose of meeting a helicopter at the helipad for transport to another destination, so long as the ambulance or helicopter does not request medical assistance in the managing of the patient.

2. Provide stabilizing care. Stability under EMTALA requires a much higher level of patient condition than that typically connoted by the word "stable" in usual medical usage. It requires that a pregnant female experiencing contractions is not legally stable until the baby and placenta are delivered. It also requires that in non-maternity cases the hospital must assure that patient is not reasonably at risk to deteriorate from, during, or following transfer or discharge. If the patient is reasonably at risk to deteriorate from the natural QROcess of their condition, they are legally unstable under this standard, just as if the transfer or discharge itself caused the deterioration. Courts have determined that EMTALA applies to in-house patients as well as emergency department patients, while CMS enforces EMTALA primarily in cases of ED admissions that are not yet stabilized when they are transferred or discharged.

3. Not transfer patients who are potentially unstable if the hospital has the capabilities and the physical capacity to treat the patient. Patients may only be transferred under EMTALA for medical necessity. Physician convenience or practice preferences are not permissible reasons for transfer. Florida requires hospitals to establish formal statements of their capabilities and are held to these capabilities for EMTALA compliance purposes.

Under EMTALA, a transfer is defined as any time the patient leaves the campus of the hospital, including discharge, unless AMA or deceased.

4. Maintain an on-call system to provide coverage to be available to assist stabilizing patients. The 2003 regulations indicate that CMS will hold hospital responsible to meet the needs of their patient population. The hospital must have a call list and may maintain it in the manner it deems appropriate, but it will be up to the CMS surveyor as to whether the call system, scope of the list vis. the specialties on-call, physician compliance, and enforcement of the list against resisting physicians has been adequate. The wording of the regulation has changed, but CMS has stated in the regulations that it does not intend that a change in the expectations of coverage have changed. A named individual physician (and not a group or call service) must be listed on the list and held responsible for call at a given time in a given specialty, and that call list must be conspicuously posted in the ED at all times. An accurate record of each on-call list must be maintained for 5 years. On-call physicians must respond to the hospital and render evaluation and care in the hospital -- it is not permissible to send patients to a specialist's office for definitive care.

The comments in the 2003 regulations now make it permissible for a physician assistant or nurse practitioner to respond for the on-call physician under limited circumstances: 1) The physician is the one listed as on-call 2) The on-call physician after being fully apprised of the patient's condition determines that the response is appropriate for a PA or NP and 3) The Emergency Physician or qualified medical person with the patient concurs. Where specialty assessment should have been provided by the physician in the opinion of the CMS regional office, but is provided by the PA or NP, CMS will cite all involved for an EMTALA violation. Standard or automatic response by the PA or NP in lieu of the on-call physician is also not permitted. Where the request for specialist response is for evaluation rather than a procedure (such as casting), it is unlikely that CMS will accept mid-level providers in lieu of the specialist. No cases have arisen under this provision as yet, so exact CMS enforcement scope remains to be seen.

If it is necessary to transfer a patient because an on-call physician improperly failed or refused to come in, the Emergency Physician must list the name and address of the on-call physician in the transfer documentation. This results in the receiving hospital reporting the incident for EMTALA investigation, with the resulting likelihood that the hospital and on-call physician will be cited for EMTALA violation. Failure to list the name is a specific violation which may result in hospital, ED physician, and on-call physician being cited.

A physician may be on-call at more than one hospital at the same time if the hospitals are aware of it and specifically have policies and procedures to cover the situation if the physician is not available due to prior commitment to a case at the other facility. The on-call physician may also schedule surgeries or appointments while on call, with the same limitation. Being actually engaged in surgery or actively managing a patient who cannot be left is a bona fide excuse for being unable to respond, but having patients in the office or having non-emergency surgery scheduled that would be interrupted by having to respond is NOT AN EXCUSE under CMS standards. A physician who is on-call at hospital A, but presently seeing a patient at hospital B or having scheduled surgery at hospital B may not have the patient at hospital A transferred to B for his or her convenience, but must respond to hospital A.

Some hospitals exempt "senior staff" from call. This provision is not an automatic violation of EMTALA, and is permitted so long as it does not impair the hospital's ability to staff call. If it does result in uncovered call time, it is likely to be viewed as unacceptable and an EMTALA violation, based on past citations.

5. Provide medically appropriate transfers where the patient is transferred for medically necessity. This process requires:

A. Physician certification that at the time of transfer, the risks of transfer are outweighed by the reasonably anticipated benefits. Specific individual risks and benefits must be listed and the record must support them; OR

B. Written request for transfer by the patient, without suggestion or pressure of the hospital or physician to induce the request.

In addition, it requires:

C. Advanced acceptance by the destination hospital, which is documented in the record;

D. Written consent to transfer from the patient;

E. Transfer by appropriate medical transfer vehicle -- i.e. private passenger vehicles are not permitted unless ambulance transport has been refused in writing;

F. Medical orders for appropriate attendant personnel -- i.e. must have the licensure and skill level to maintain and/or initiate/re-initiate ordered treatment or drugs and deal with the known potential adverse affects of the QROcedures or drugs;

G. Medical orders for appropriate life support equipment -- i.e. field ambulance equipment may not be sufficient for a specific transfer;

H. Copies of medical records, tests, and x-rays must be sent with the patient, unless delay for records might jeopardize the patient, in which case records must be transported to the receiving hospital as soon as completed and on a STAT basis.

6. Accept requests for in-coming transfer
if the hospital has the specialized capabilities needed by the patient, and the transferring hospital is relatively less able to care for the patient. The hospital may decline a patient who does not need the services of the facility, who can be adequately and completely cared for at the originating facility, or when the hospital lacks the physical capacity to handle the patient. Hospitals are at great risk, if they decline a transfer. Where the hospital has the ability to utilize on-call personnel, it must do so to accommodate the patient. Where the hospital has handled patients in excess of its stated capacity on prior occasions, it is required to accept the patient. Where the hospital could use step-down beds or early discharge to accommodate a patient, it must do so. Patients must be accepted without regard to means or ability to pay, or the third-party payer involved.

Although CMS considers admitted patient to be outside the bounds of EMTALA for transfer purposes, the comments to the regulations emphasized that hospitals are still required to accept the admitted patient in need of a higher level of care where they would be considered EMTALA patients if they were still in the ED.

From a risk management point of view, all inter hospital transfers should follow the EMTALA definition of anappropriatee transfer process, as it is highly likely that CMS will follow its own definition of what an appropriate transfer is when enforcing CoP's as well as EMTALA. Likewise, it would be very difficult to explain to a jury why appropriate standards for emergency department patients with the same condition are different from admitted patients with the identical condition. This is a standard of care issue that is very difficult to respond to. By following the same protocol for allinter hospitall transfers, you achieve standardization and compliance levels of documentation for EMTALA, CoP's and malpractice defense purposes simultaneously. We consider this to be the best practice for transfers.


The scope of medical screening exams (MSE) under EMTALA is to provide a medical exam of sufficient scope as to reasonably be intended to determine whether an emergency medical condition exists, and includes all necessary testing and on-call services within the capability of the hospital to reach a diagnosis that excludes the presence of legally defined EMC's. The term EMC will be defined below. Exams that are "complaint based" and fail to address affected and potentially affected systems and known chronic conditions have been held inadequate by CMS.

Florida law also requires the exam to include all necessary treatment and surgery.

Federal law basically requires all necessary definitive treatment to be rendered and that only true follow-up care (maintenance care) may be referred to physician offices or clinics.

Triage of patients is NOT a Medical Screening Exam
and is NOT an acceptable substitute under EMTALA.

Screening of psychiatric patients must be sufficient to rule out underlying trauma, disease or organic condition that might have caused or contributed to the presenting symptoms.

Screening of intoxicated individuals must be sufficient to rule out medical, toxic, psychiatric, and trauma causes for the apparent state.

Use of non-physician medical screening personnel is discouraged but not QROhibited. Screeners must have the capability to order tests and diagnose to meet the screening criteria. Specific actions are required to authorize non-physician screening, and CMS does not have to accept screening plans set up under the criteria for non-physician screening in individual cases -- i.e. the system will be judged retrospectively in each case.

    Based upon past citations by CMS, advisory letters from CMS, and past litigation, it is our considered opinion that a medical screening examination should contain the following elements:
  1. Log entry with disposition
  2. Triage record
  3. On-going vitals recorded
  4. Oral history
  5. Physical exam of affected systems
  6. Physical exam of potentially affected systems and known chronic conditions
  7. Any testing necessary to rule out the presence of legally defined emergency medical conditions
  8. Use of on-call personnel PRN to complete above
  9. Use of on-call physicians PRN to diagnose and stabilize patient
  10. Resolution of abnormal findings or test results by normalization (serial values) or explanation of why they are not significant to the presentation
  11. Discharge/transfer vitals
  12. Adequate documentation of all above
We recommend against the use of non-physicians for emergency department medical screening examinations. We urge the use of objective clinical criteria and scoring systems for OB screening in the Labor and Delivery department if nursing staff are to perform OB evaluations as they have historically done in much of the US.

CMS written standards for designation for a non-physician for MSE and transfer decisions are items 1 and 2, while the remainder are those that have been articulated in various citations and should be considered "critical concerns" when a CMS review is undertaken:

  • The classification for qualified medical personnel other than a physician who is authorized to perform a medical screening exam in specified departments of the hospital has been approved by the board of the hospital directly or by Board ratification of Medical Staff Bylaws provisions. (The concept is that the Board is privileging a non-physician to perform and extended role, much as a mid-level provider.)
  • The scope of designation must be within the scope of practice for the designated provider under state laws
  • Job description for the role, qualifications, and competencies must be established
  • Formal designation for approved individuals is contained in their personnel records along with proof of specific EMTALA training appropriate to their role
  • On-going documentation of competencies, qualifications, and quality review appears in the personnel records of designated individuals
  • A written protocol exists defining the authorized functions of the non-physician
  • The protocol must clearly define the point when a patient is considered beyond the non-physician's capabilities and a physician must complete the CME
  • The rules must provide that the physician backing up the non-physician doing the MSE is readily available and is mandated to promptly respond to provide the MSE upon call or request.

Discharge vitals and adequate discharge summary are necessary to support a discharge. Un addressed complaints, unresolved abnormal findings, and undocumented or illegible discharge instructions are likely to be cited. Full transfer documentation must support a transfer and justify the transfer under EMTALA.

Criteria for non-physician (qualified medical person --QMP)


The term EMC is much broader under EMTALA than under typical medical usage. This is a significant underlying cause for many EMTALA violations. The term includes any condition that is a danger to the health and safety of the patient or unborn fetus; or may result in a risk of impairment or dysfunction to the smallest bodily organ or part if not treated in the foreseeable future; and includes a specific range of itemized conditions:

  1. . Undiagnosed, acute pain sufficient to impair normal functioning is an EMC [Editorial comment: pain scale of 7 or greater is commonly associated with this level of impaired function, but this will be judged retrospectively by CMS based on patient version and outcome, so documentation is critical. A lower pain value may not be "safe"];
  2. Pregnancy with contractions present is an EMC -- i.e. legally defined as unstable;
  3. Symptoms of substance abuse -- i.e. alcohol ingestion;
  4. Psychiatric disturbances -- i.e. severe depression, insomnia, suicide attempt or ideation, dis-associative state, inability to comprehend danger or to care for one's self.


Federal law permits the obtaining of information in the routine registration QROcess, but the information may not be acted on -- i.e. no advance approval may be obtained from a third-party payer or employer.

Calls to insurance companies or employers have repeated resulted in citations for EMTALA violation. Handing a phone to the patient and having them call their insurance has likewise resulted in citations. CMS specifically states that third-party payers do not have the authority to authorize treatment and that hospitals that follow HMO and insurance company procedures and directions will be cited for EMTALA violations.

Patient transfers decisions may not be based on HMO/PPO direction or policy.

CMS 2003 regulations strongly endorse the OIG/CMS prior "best practices" (translate that to "what we expect...") but do allow some slightly wider latitude. The basics of the "best practices" are:

  1. Name and one other identifier at triage
  2. Patients who are not triaged to the back my have routine registration that does not discourage the patient from completing care (Comment: If you have a conditions of admission form with guarantors, personal liability statement, and assignment of benefits, you are at risk for financial discussions and resulting patient departures. CMS has indicated that any system that induces departures will be at risk for citation for violating EMTALA.)
  3. You MAY ask for insurance information and copy the card
  4. You are strongly DISCOURAGED from any financial discussions at this point
  5. If the patient asks about financial issues, you are to say that finances can be dealt with following care
  6. If the patient continues to insist, the best practices indicate that a financial person experienced in EMTALA should hold that conversation (Comment: I strongly recommend that physicians and nurses NOT DISCUSS any financial issues with the patient at any time)
  7. You may contact a physician for medical purposes at any time, but not for gatekeeper permission to treat (Comment: private physicians should be contacted only where there is a documented medical need, and no request by the PCP to send the patient to the office should be granted.)
  8. You may contact the insurance company after care is initiated (although most now do not require that), but if permission to treat or admit is DENIED, you still must provide the care. (So why call?)
  9. It is not required, but is considered a prudent approach, to separate the financial face sheet from the treatment record, so the treating physician is not aware of denials or types of insurance.
  10. Once the patient has had an MSE and is stabilized and/or admitted or the patient is determined not to have any emergency medical condition under the law, completion of registration and financial discussions may occur without EMTALA restrictions.

Standing systems, such as trauma center programs do not exempt participating hospitals from EMTALA compliance, although certain Regional Offices are more flexible with community-based plans for services than others. The 1998 guidelines indicate that community plans may justify original diversion in the field, but once the patient arrives at a hospital, that hospital must screen and stabilize before transfer, if able within its capabilities and services. Transfer certification, acceptance, transfer consent, and medical records documentation is required in every region.

Diversion of ambulances is only permitted following a community-wide plan to assure that decisions on acceptance of ambulances is based on true capacity and capabilities rather than selective patient practices. The 2003 modifications added the concept that EMTALA compliance on issues of care and diversion will not be cited during declared national emergencies. It seems doubtful that the absence of a declaration of emergency will be forthcoming until after the fact, so this basically leaves the hospital in the position of having to take it on faith that CMS will not cite for following a community disaster plan when a hospital has actually activated their disaster plan -- I cannot be certain, but I think this is about 99.9% probable, based on past actions by CMS. Hospital-owned ambulances are required to transport patients to the owner hospital for similar reasons. The 2003 regulations, however, have articulated some exceptions to that provision -- hospital-owned ambulances are exempt from this when:

  • The ambulance is following a community-wide EMS plan --or
  • The ambulance is operating under EMS protocols developed by the system medical director, if the medical director is not an employee or affiliated with the owner-hospital -- or
  • Upon documented patient informed request to go elsewhere

State waivers for Medicaid do not waive EMTALA. Many waiver states have adopted managed care and gate-keeper models to discourage emergency department use. Compliance with these systems has resulted in significant enforcement action against hospitals in the past year under EMTALA., The 1997 Balance Budget Act bans Medicaid and Medicare managed care plans from requiring pre-authorization.

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